RECONSIDERATION DECISION
Before: Asad Ali Moten
Tribunal File Number: 11671/ONHWPA and 11842/ONHWPA
Case Name: Paramsothy & Nanthakumar v. Tarion Warranty Corporation and Bradford Capital Holdings Inc.
Written Submissions by:
For the Appellants: Self-represented
For the Respondent: Ryan Schell, Counsel
OVERVIEW
1Interestingly, both the appellants, Paramsothy and Nanthakumar, and the respondent, Tarion Warranty Corporation, seek reconsideration from a decision (the “Decision”) of this Tribunal dated September 4, 2020. The added third party, Bradford Capital Holdings Inc., has not requested reconsideration and does not appear to take any position on the two cross-requests. For ease of reference this reconsideration decision will refer to the appellants from the original hearing as the appellants, and the respondent from the original hearing as the respondent, regardless of which request is being considered.
2The Decision arose from a hearing in June 2020 about several disputed new home warranty claims. The respondent rejected some of the appellants’ claims, and the appellants appealed the rejected claims to the Tribunal. The Decision dismissed two of the three claims before it. On the issue of roof rainfall handling, however, the Tribunal allowed the appeal and directed the respondent to “implement a solution that provides for adequate drainage from the roof without breaching municipal requirements.”
3The respondent filed its reconsideration request on September 24, 2020. In its written submissions the respondent claims that the Tribunal erred by, in essence, considering as evidence and relying upon videos which had been exchanged between the parties prior to the hearing, but which had not been entered into the evidentiary record.
4The appellants filed their own reconsideration request immediately upon receiving the respondent’s. Besides a two-line email to the Tribunal attaching the request for reconsideration, the appellants have not provided any written submissions. The appellants instead rest on several hundred photos and videos sent to the Tribunal in support of their reconsideration and, presumably, in opposition to the respondent’s. The appellants appear to seek repayment of $4,400 paid to the third party in closing costs, and reconsideration of findings in the Decision with respect to issues in the cold room.
5The respondent seeks that the Decision “be reconsidered by the Tribunal without any consideration given to the [appellants’] videos…” or a rehearing limited to the allowed claim.
RESULT
6The respondent’s request for reconsideration is granted. The matter shall be re-heard on the limited issue of the roof rainfall handling.
7The appellants’ request for reconsideration is dismissed.
ANALYSIS
8The grounds for the request for reconsideration are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (the “Common Rules”). A request for reconsideration will not be granted unless one or more of the criteria are met.
The Respondent’s Request
9The respondent in this case relies on Rules 18.2(a) and 18.2(b), namely that the Tribunal (a) acted outside of its jurisdiction or violated the rules of procedural fairness; and (b) made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. The crux of both grounds is the same; the Tribunal erred in allowing in and relying on video evidence in finding for the appellants on a particular issue, when the videos had not been properly introduced as evidence. But for the videos, the respondent argues, the only evidence before the Tribunal would be the respondents, indicating that the rainfall issue had been repaired.
10The respondent argues that the videos were not referred to by the appellants, nor were they introduced or authenticated by any witnesses. This, in the respondent’s opinion, deprived it of the opportunity to cross-examine on the videos or to challenge the weight that should be given to them. The respondent admits, however, that the appellants did provide all parties and the Tribunal with a copy of the videos as part of the appellants’ disclosure.
11The irony is that in support of its request for reconsideration, the respondent submitted an affidavit from a student-at-law in its office who attended the hearing. The affidavit has not been cross-examined upon (though the appellants have had a copy for several months), is rife with argument improperly included in an affidavit, and attaches as its only exhibit a copy of the Decision. The transcript of the hearing, if any, has not been provided.
12The Decision makes clear that the videos formed an integral part of the adjudicator’s findings with respect to the roof rainfall handling. At paragraph 19 of the Decision:
The appellants provided video of the performance of the gutters forming the eavestrough system of the roof…the video clips taken during rainfall periods showed significant overflow at the corners of the home…
13And at paragraph 26 of the Decision:
…the videos provided by the appellants make clear that the two downspouts cannot handle what was intended to be dealt with by four…I find that the water drainage system for rainfall handling has not been constructed in a workmanlike manner.
14I agree with the respondent that the Tribunal violated the rules of procedural fairness in arriving at the Decision. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] S.C.J. No. 39, the Supreme Court of Canada outlined a process for determining what is procedurally fair in a given circumstance. The Court outlined five factors:
a. The nature of the decision being made and the process followed in making it;
b. The nature of the relevant statutory schemes;
c. The importance of the decision for the individual affected;
d. The legitimate expectations of the person challenging the relevant decision; and,
e. The choices of procedure made by the agency.
15As a quasi-judicial tribunal, the Tribunal owes the highest degree of procedural fairness to the parties. Parties are entitled to a decision made by an impartial adjudicator based on the evidence presented at the hearing. Further, because of the nature of the Tribunal and its process, parties have a reasonable and legitimate expectation that the Tribunal’s process will be consistent and adhered, to the degree possible, to how the Tribunal has conducted itself in the past (i.e. in a manner somewhat comparable to a court). While tribunals may not be as tightly bound by the rules of evidence as courts, decisions must still be constrained by the evidence presented at the hearing.
16Section 15 of the Statutory Powers Procedure Act (the “Act”) permits the Tribunal to consider as evidence at a hearing any oral testimony or any document or other thing, even where the evidence was not given under oath/affirmation or would not be admissible as evidence in court. There are some exceptions, but they do not apply here. This section is broadly understood to permit administrative decision makers more flexibility than courts in considering evidence and achieving the “just, most expeditious and cost-effective determination of every proceeding on its merits.”
17Despite this flexibility, section 15 of the Act does not permit the Tribunal to import information such as the videos in question into the Decision. The wording of section 15 talks about admitting documents or other things “as evidence at a hearing”, meaning that information must become evidence during the hearing, not after. Further, section 16 of the Act limits what kind of non-evidentiary information can be used during decision-making. Suffice it to say the videos would not fall under section 16 of the Act.
18The videos formed part of the pre-hearing disclosure exchanged by the parties. As is common in litigation, not all of the documents that a party intends to rely upon end up being put before the decision-maker during the hearing. In the Tribunal context, documents are often entered en masse as exhibits at the outset of a hearing. As exhibits, the documents, including the videos in question, would be part of the record and the respondent would – practically speaking – be ‘on notice’ that the videos might factor into the Tribunal’s decision.
19In this case, however, the videos do not appear to have been made an exhibit, either individually or en masse. The evidence before me is that there were four exhibits: two books of documents by the respondent (which did not contain the videos), an excerpt of Tarion’s Construction Performance Guidelines, and a review of grading on the property. Nor were the videos ever referred to by either party.
20In essence, section 15 of the Act gives parties broad leeway to present evidence, and Tribunals broad leeway to admit and consider it, but the evidence must still be entered. In this case, the videos were not entered in evidence. They only formed part of the Decision after the fact. As a result, the respondent was denied the ability to test the videos, call its own evidence to contradict the videos, or make submissions as to why the videos should be given less weight than the appellants would like. Considering evidence not entered at the hearing in this context was procedurally unfair to the respondent, and as a result the Decision cannot stand.
21Given my finding that including the videos as evidence in the Decision violated procedural fairness, I need not consider whether or not the Tribunal acted outside of its jurisdiction or made an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.
22I find that the appropriate outcome of this reconsideration request is to order that the matter be re-heard, limited to the roof rainfall handling issue.
The Appellants’ Request
23The appellants seek reconsideration on all of the grounds in Rule 18.2. In support of their request, they submit over 250 photos and videos. They did not make any written submissions or provide anything else. It is not clear whether these are new photos and videos or whether they were submitted to the Tribunal at the original hearing, or if not submitted, whether they could have been. If they were not admitted during the original hearing, the appellants have not satisfied the criteria outlined in Rule 18.2(d) for admitting new evidence on reconsideration.
24In any event, besides what the pictures and videos show I have no way of understanding what I am supposed to glean from this information, in particular with respect to: a) how the Tribunal acted outside of its jurisdiction or violated the rules of procedural fairness; b) how the Tribunal heard false evidence; or c) how the Tribunal made an error of law. I therefore decline to grant the appellants’ reconsideration request on these grounds.
25With respect to whether the Tribunal made an error of fact or whether the photos and videos submitted are evidence that was not before the Tribunal at the original hearing, in the absence of any submissions by the appellants I have no basis for concluding that the Tribunal would have likely reached a different result or that it would likely have affected the result. I have no context for comparing the photos and videos with anything that was before the Tribunal during the hearing. I therefore decline to grant the appellants’ request on these grounds.
CONCLUSION
26For the reasons noted above, the appellants’ request for reconsideration is dismissed. The respondent’s request for reconsideration is granted. There shall be a re-hearing solely on the issue of roof rainfall handling. The videos with respect to roof rainfall handling that were delivered to the Tribunal during the lead-up to the original hearing shall be marked as exhibits at the outset of the re-hearing, subject to any order of the adjudicator seized of the re-hearing.
Released: June 25, 2021
Asad Ali Moten,
Adjudicator